DON REID FORD, INC., A FLORIDA CORPORATION, FORMERLY KNOWN AS JOHNNY BOLTON FORD, INC., FOR THE USE AND BENEFIT OF FLORIDA INSURANCE GUARANTY ASSOCIATION, INC., A FLORIDA CORPORATION, APPELLANT,
v.
BENNETT G. FELDMAN AND GULF INSURANCE COMPANY, APPELLEES

Fla. 5th DCA | 1982-10-06
No. 81-858
FRANK D. UPCHURCH, Jr. and CO-WART, JJ., concur.
421 So. 2d 184 Florida District Court of Appeal, Fifth District (1982) Caution
Cited by 12 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Florida Insurance Guaranty Association (FIGA), as subrogee of Don Reid Ford, Inc., appealed the dismissal of its legal malpractice action against attorney Bennett Feldman on statute of limitations grounds. The court affirmed, holding that the statute of limitations on a subrogated insurer's malpractice claim against an attorney begins to run when the underlying judgment is entered, not when the insurer pays the claim.


Holding

The statute of limitations begins to run on a subrogated insurer's malpractice action when the judgment is entered against the insured due to the alleged malpractice of the attorney, not when the insurer later pays the claim. A subrogee takes only the cause of action the insured had and stands in the insured's shoes for statute of limitations purposes.


Headnotes

[1] The statute of limitations on an attorney malpractice action begins to run when a judgment is entered against the insured due to the attorney's alleged malpractice.

[2] A subrogated insurer stands in the shoes of its insured and is subject to the same defenses that could have been asserted against the insured.

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Key Quotes

“FIGA has only the cause of action which Don Reid Ford, Inc., had against the attorney or, alternatively, the cause of action which Commonwealth would have had against its attorney, and either cause of action arose when the judgment was entered against Don Reid Ford, Inc.”

Establishes the core principle that a subrogee's cause of action is derivative and arises at the same time as the insured's underlying cause of action.

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Facts & Procedural History

Don Reid Ford, Inc. was sued for damages from negligent operation of a vehicle by its employee. Commonwealth Insurance Company retained attorney Feldm…

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Opinion of the Court
ORFINGER, Chief Judge.

ORFINGER, Chief Judge.

The trial court entered a summary final judgment for appellees on the theory that the statute of limitations had run on appellant’s subrogation claim, and this appeal follows. We affirm.

When Don Reid Ford, Inc., (under the former name of Johnny Bolton Ford, Inc.), was sued for damages because of the negligent operation of a motor vehicle by one of its employees, its liability insurer, Commonwealth Insurance Company (Commonwealth) retained appellee Feldman as counsel to defend the action for its insured. When Feldman failed to appear for trial, a final judgment by default was entered against Don Reid Ford, Inc., on March 20, 1978. Because Commonwealth was now bankrupt, Don Reid Ford, Inc., paid the judgment and made a claim against appellant Florida Insurance Guaranty Association, Inc. (FIGA).1 FIGA paid Don Reid Ford, Inc., on February 5, 1980.

As subrogee of Don Reid Ford, Inc., FIGA filed this malpractice action on September 23, 1980, against Feldman and his malpractice insurer, seeking to recover the amount it had paid to Don Reid Ford, Inc. Feldman contended that the statute of limitations began to run on March 20, 1978, when the judgment was entered against Don Reid Ford, Inc., and that the present action was thus barred because it was filed more than two years from that date.2 The trial court agreed and entered the summary final judgment.

We agree that the statute of limitations began to run on the malpractice action when the judgment was entered against the insured because of the alleged malpractice of the attorney. FIGA has only the cause of action which Don Reid Ford, Inc., had against the attorney or, alternatively, the cause of action which Commonwealth would have had against its attorney, and either cause of action arose when the judgment was entered against Don Reid Ford, Inc. See State Farm Mutual Automobile Insurance Co. v. Kilbreath, 419 So. 2d 632 (Fla.1982); Dickerson v. Orange State Oil Co., 123 So. 2d 562 (Fla.2d DCA 1960). The rule is summarized in the annotation in 91 A.L.R.3d 844 (1979) as follows:

Where insurers have brought actions for subrogation to recover, for injuries or damage for which the insurer has paid its insured, against a third party whose alleged tortious conduct caused the injuries or damage, such insurers have frequently attempted to have applied to the subrogation actions the same time of accrual as that applied to indemnity actions, but courts generally have adhered to the view that the statute of limitations begins to run on a subrogated insurer’s action against a third-party tortfeasor at the same time that the statute of limitations would begin to run on an action by the insured, or his personal representative in the event of the death of the insured, against the third-party tortfeasor. A rationale offered in support of this view has been that a subrogated insurer stands in the shoes of its insured, taking no rights other than those that the insured had, and at the same time being subject to all defenses which the third-party tortfeasor might assert against the insured.

Id. at 847.

Appellant relies on Underwriters at Lloyds v. City of Lauderdale Lakes, 382 So. 2d 702 (Fla.1980), as support for its position that its subrogation action is a new cause of action and therefore the statute of limitations on its claim did not begin to run until it paid the judgment. City of Lauder-dale Lakes involves a factual situation not at all analogous to the case here and, moreover, the supreme court does not address in that case any question involving the statute of limitations.

The judgment is AFFIRMED.

FRANK D. UPCHURCH, Jr. and CO-WART, JJ., concur. . See section 631.50, et seq., Florida Statutes (1979).

. See section 95.11(4), Florida Statutes (1979).


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Allstate Ins. Co. v. Metro. Dade Cnty., 436 So. 2d 976 (Fla. 3d DCA 1983)
    …at in contractual subrogation actions, the statute of limitations runs from the date of the injury to the original “rightsholder” and not from the date of payment by the subrogee. These traditional rules are stated in Don Reid Ford, Inc. v. Feldman, 421 So. 2d 184 (Fla. 5th DCA 1982): Where insurers have brought actions for subrogation to recover, for injuries or damage for which the insurer has paid its insured, against a third party whose alleged tortious conduct caused the injuries or damage, such insurer…
  • …the four-year statute [*79] of limitations (95.11(3)(a)), which began to run at the time of the accident and would have expired on December 31, 1985. This suit was filed on January 15, 1986. Scott & Jobalia rely upon Don Reid Ford, Inc. v. Feldman, 421 So. 2d 184 (Fla. 5th DCA 1982) and Allstate Ins. Co. v. Metropolitan Dade County, 436 So. 2d 976 (Fla. 3d DCA 1983), rev. den., 447 So. 2d 885 (Fla.1984). Both of those cases, however, deal with subrogation rights, not indemnity. Although closely interrelated,…
  • …te of limitations runs from the date of the injury to the original ‘rightsholder’ and not from the date of payment by the subrogee.” Allstate Ins. Co. v. Metro. Dade County, 436 So. 2d 976, 979 (Fla. 3d DCA 1983); see Don Reid Ford, Inc. v. Feldman, 421 So. 2d 184, 185-86 (Fla. 5th DCA 1982). . Subsections 768.28(6)(a) and (b) provide: (6)(a) An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriat…

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